Tsui Yiu Wing v. Lam Chun Kit t/a Shing Hing Construction Engineering Co.

DCEC000576/2000

DCEC576/2000

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 576 OF 2000

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Coram: H H Judge Carlson in Court

Date of Hearing: 21 November 2001 & 3 December 2001

Date of Judgment: 6 December 2001

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J U D G M E N T

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1.At 4.07 am on 4 August 1999, the applicant, Mr Tsui Yiu-wing, attended Kwong Wah Hospital complaining of a swollen right ring finger. X-ray examinations showed that it was fractured. He says that this had happened on the previous afternoon when, in the course of his employment with the respondent, whilst he and some other workmen were moving a heavy metal cylinder by placing it on a trolley, the cylinder had tilted and trapped his right hand and finger against the entrance to the lift into which the trolley was being wheeled. He now claims compensation under various sections of the Employees' Compensation Ordinance (the ordinance). The respondent denies that the incident which is said to give rise to the claim took place.

2.As will emerge from a brief recitation of the evidence that both sides have called, the matter turns entirely on whose evidence I believe, the applicant of course carrying the burden of persuading me that his version of events is the true one. If he discharges that burden, he will have satisfied the requirements of section 5(1) of the ordinance by demonstrating that he had suffered personal injury by accident arising out of and in the course of his employment. It is now accepted that he was an employee of the respondent and that the incident as alleged by him was one that would have arisen out of and in the course of such employment.

3.In the event of the applicant succeeding, there will be a short but important dispute which requires resolution relating to the percentage disability of loss of earning capacity. There is also an issue as to the daily rate at which the applicant was being paid.

4.The applicant is a casual worker on building sites. He does interior decoration work, mostly as a plasterer and painter. On this occasion, the respondent had been awarded a contract to dismantle restaurant premises at Chung On Street, Tsuen Wan, which were on the 4th floor of the building. At about 5.30 pm, the applicant and three other workmen were asked to move the metal cylinder down to the ground floor. It was 6 feet high and about 3 feet in diameter. He thinks it weighed about 110 kilogrammes. He says that the three others were two Mandarin speakers whose names he did not know and who he assumes came from the mainland. The other was Ah Tak, who he did know. He is Mr Chan Yee-tak who has given evidence on behalf of the respondent.

5.The applicant has, in some detail, described the course of events leading to his injury. The cylinder was lifted onto the trolley and wheeled to the lift which would have carried them to the ground floor. When the trolley had reached the lift, the ground there was uneven so that the trolley became stuck and it needed to be eased into the lift itself. Two of the workmen had got into the lift, that was Mr Chan and one of the Mandarin speakers. The applicant and the other Mandarin speaker were outside the lift. The Mandarin speaker outside the lift then put a crowbar under the trolley and levered it forwards to push the trolley over the uneven ground and into the lift. The cylinder which up till then had been standing upright on the trolley with the applicant holding it steady and pushing the trolley forwards himself suddenly began to wobble and it tilted to the left and, in doing so, it trapped his right hand between the cylinder and the lift door.

6.He says that he let out a loud scream and was in considerable pain. The cylinder, to use his expression, then "bounced back" to an upright position releasing his hand. After that, he had to sit down for 15 minutes whilst the pain subsided. Whilst he did that, his colleagues finished the task and removed the cylinder to the ground floor. When he felt better, he went down and told the respondent what had happened to him and he told him to go home. The respondent said that he would finish up on site.

7.After he returned home and had dinner, the pain had largely subsided and although the finger was swollen, he had managed to have dinner and use his chopsticks in doing so. He went to bed at about 11 pm but in the middle of the night was woken by a throbbing pain from his finger. Unable to sleep and also due to the discomfort, he took himself in the middle of the night to Kwong Wah Hospital where, as I have already recounted, the fracture of the right ring finger was diagnosed.

8.The finger was appropriately bandaged and he was given sick leave from 4 to 12 August and thereafter from 30 August until 15 September, a total of 30 days. He had follow-up treatment at hospital on three further occasions and saw a private doctor once. His finger has largely returned to what it was before the injury although he complains of residual weakness which he says prevents him from carrying weights in the way that he could before the fracture.

9.The Ordinary Assessment Board assessed loss of earning capacity at 1 per cent, which percentage was subsequently confirmed on review. He now appeals to this court against that assessment, more of which should I find in his favour on liability.

10.Miss Yu, on behalf of the respondent, has cross-examined the applicant on the basis that he simply has not been telling the truth. Whilst the respondent accepts that this task was performed, the removal of the cylinder was in the early afternoon, just after lunch and before the afternoon tea break. The persons taking part in the operation were the respondent, the applicant, Mr Chan, that is to say Ah Tak, and Mr Tai who also gave evidence on behalf of the respondent.

11.There had been no incident of the type described by the applicant. He had not been injured. The removal of the cylinder had been uneventful, after which, in time honoured fashion, they all went off for a cup of tea. The applicant does not accept this account and he reaffirmed what he had told me in his evidence-in-chief. It was also put to him that he even suggested playing mahjong after work. He rejected that as well but agreed that in the past, on other occasions, he and the respondent had played mahjong after work.

12.The other important issue about which the parties are also diametrically opposed concerns the applicant's rate of pay. He says that it was $800 per day, whilst the respondent and his witnesses say the pay was $600 per day, it having come down to that level as a result of the recession in the economy. The respondent and both his witnesses have given evidence largely in line with the case that was put to the applicant, but I should say more about the respondent's evidence and cross-examination by Mr Clough, who appears for the applicant.

13.What is clear is that the respondent, although he has registered a rather grand business name of Shing Hing Construction Engineering Company, is in a very modest way a business, not much construction and certainly no engineering. He takes on sub-contracts, usually fairly small ones, and employs casual labourers as and when required according to the contracts that he obtains. When he does not have sub-contracts, he works as a casual labourer himself.

14.I am satisfied, having heard his explanation, that he keeps minimal business records for tax purposes and, what is more disturbing, he rarely takes out an employees' compensation insurance policy as required by the ordinance under criminal sanction. Significantly, he had no insurance policy to cover these particular works. His finances are such that he frequently cannot afford insurance. This is clearly something of a hand-to-mouth business. The other feature of the evidence which emerged in cross-examination is his disinterest in, and I do not think it would be wrong to describe it as irresponsible approach to the course of this litigation. I should mention some of the detail of it here.

15.The application was filed on 27 June 2000. There is in the papers an affirmation of service from a member of the Legal Aid Department to the effect that the respondent was spoken to on his mobile telephone on 27 July 2000 and that the nature of the application was explained to him and that he agreed to go to the Legal Aid Department the following day to collect the documents. He was also told that a call-over hearing had been fixed before me on 11 October 2000. He failed to attend the Legal Aid Department's offices and failed to attend the call-over on 11 October. This was put to him in cross-examination but he insisted that he had received no such telephone call. I tried to assist him by informing him of some of the detail of the clerk's affirmation to the effect that the person concerned was called Miss Wong. He said that Wong was a common name and that he frequently received many prank calls on his telephone. Although, of course, Miss Wong did not give evidence of this telephone call in the trial, I found the respondent's answers to these questions most unimpressive.

16.On 11 October, I directed that he should be served by leaving the documents at his last known address and the matter was restored on 4 May this year when the respondent appeared. Counsel for the Legal Aid Department invited him to go to their offices to collect the court papers and the matter was further adjourned to 1 June. On that occasion, he said he could not really understand what was going on so I ordered the translation of the papers and these were served on him on 16 July 2001. The matter was restored on 5 October, some 15 months after the telephone call on 27 July 2000 when he had been spoken to and informed of the application. There was still no answer by him which had first been ordered on 11 October 2000, a year previously. In the face of what appeared to me to be wilful disinterest by the respondent, I entered judgment. He subsequently went to solicitors who shortly before the trial persuaded me to set that judgment aside, which I did, but on terms as to costs. I will need to return to this presently.

17.For the sake of completeness, I should also mention that Mr Chan and Mr Tai have given evidence and they have supported the respondent's account of the events of 3 August 1999 that no incident of the sort complained of by the applicant took place. They both remained unmoved by Mr Clough's cross-examination.

18.Who do I believe? The applicant has undoubtedly suffered the fracture complained of by him. The medical evidence is conclusive. If the respondent and his witnesses are correct, he must have done this sometime between 6 pm when he finished work and 4 am when he went to hospital, which is of course possible. The applicant has given a very detailed account of how this happened which I found both logical and credible. There is nothing in the content of his account or in the manner in which he gave it that causes me any discomfort about his credibility. Miss Yu has made a number of points in a careful final speech, including drawing attention to the fact that he ate dinner with chopsticks which he could not use if he had sustained a fracture before dinner. His reply to that is that at the time the discomfort was not great, and I am bound to say that even an inexperienced chopstick-user can say that it is largely thumb, forefinger and third finger that are deployed in using chopsticks, the ring finger playing a highly subsidiary part in that exercise. So I do not believe there is anything in that point.

19.Against the applicant are ranged three witnesses which, as a starting point, is certainly worth something. Nevertheless, I am bound to say that I found the respondent a completely untrustworthy witness. I accept Mr Clough's submission that when faced with this claim, and I am satisfied that the applicant had informed him of the injury on the day and when he returned the next day to say that he had been to hospital and could not work, the respondent has done all that he could to ignore the application in the hope that the applicant might lose interest. This is all explained by his approach on all the interlocutory hearings as he made his excuses for either not appearing and for not filing an answer. As Mr Clough rightly submits, this is mostly explained by the fact that the respondent's highly ad hoc and irregular business carried no insurance against which a claim might be made. In the event of an award, he will bear this personally and he realised it.

20.Consequently, I am completely satisfied that he has given an untruthful account of the events of 3 August 1999 and I am afraid that he has also put up Mr Chan and Mr Tai to go along with him and also give false accounts, including the denial about the presence of two Mandarin speaking workmen who I suspect had no lawful papers entitling them to work in Hong Kong.

21.There was no reason for the applicant to lie about that. I accept his evidence. I reject the respondent's and that of his witnesses. Accordingly, there must be judgment for the applicant.

22.In coming to this view, I also accept the applicant's account that his pay was $800 a day. I follow what may seem persuasive evidence from the respondent and his witnesses on why it might have come down to $600 but I prefer the applicant on this too, where I am unable to accept anything that the respondent and his witnesses have told me on matters that are in dispute between these parties.

23.From this, I come to quantum.

24.The only issue relates to the section 9 element of the claim. Mr Clough contends for a 10 per cent disability. Where I have found Mr Clough entirely persuasive on the facts supporting liability, I now feel quite unable to follow his reasoning on the issue of loss of earning capacity. This, after all, is a fractured ring finger which has healed. I am not concerned with an applicant who is a harpsichordist or a professional pianist. His disability has been considered twice by experienced members of an assessment board and a review board with the same result: 1 per cent. For my part, I cannot begin to fault their view. His right hand would be minimally impaired by this injury. There is no reason why he should not be able to perform for all intents and purposes as he has done pre-accident. The appeal against the assessment is accordingly dismissed.

25.The s.9 award is therefore 1 per cent multiplied by $16,000 multiplied by 72 giving $11,520. The s.10 award will be four-fifths of $16,000 which is $12,800. Medical expenses under section 10A are $381 giving a total award of $24,701. I apply interest to that from 3 August 1999 at 4.91 per cent for 27.6 months which will be added to the sum of $24,701.

26.Costs must clearly follow the event and with Legal Aid taxation for the applicant's costs and I will give certificate for counsel. This is a case where although the award is very modest indeed, it has all turned on issues of credibility in cross-examination. I think where counsel were employed on both sides, and it was justified in the circumstances, there should be certificate for counsel.

Representation:

Mr N Clough, instructed by the Director of Legal Aid, for the Applicant

Ms M Yu, instructed by M/s Winnie Lo & Wong, for the Respondent

Mr D Bryan, for the Director of Legal Aid, for the Applicant

Ms Mandy Wong, of M/s Winnie Lo & Wong, for the Respondent